No. 

### 14417 

### INTHE supm

### COUHT OF 

### THE STATEOF rnNTANA 

### 1978

THE 

### STATEOF JONTANA,

### Plaintiff and Respondent,

-VSKENNETH 

### BREmSTEIN',SR. DefendantandAppellant.

Appeal froan: District Courtof theNineteenth Judicial District, Honorable Ibbert M. 

### Holter, Judgepresiding. Counsel of mrd: 

### ForAppellant: Frank 

### B. bbrrison, Sr., Whitefish, Mntana ForRespondent: Hon. Mike Greely,Attorney General, Helena,Mntana WilliamA. 

### Douglas,CountyAttorney, Libby,Mntana



### Submitted onbriefs: No- 

### 8, 1978 

## MAR2 - 

## !979 Decided.Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

Defendant Kenneth Breitenstein, Sr., appeals from a judgment convicting him of the crime of aggravated assault following a jury trial in the District Court of Lincoln County. On July 4, 1977, appellant Kenneth Breitenstein, Sr.,



### was arrested inLincoln County, Montana, on the charge of aggravated assaultunder section 94-5-202, R.C.M. 1947, now section 45-5-202 MCA. An information was filed charging that the defendant had purposely and knowingly placed William H. Heika inreasonable apprehension of serious bodily injury by use of a weapon, specifically that he had pointed a pistol atWilliamHeika and threatened to shoot him if he moved. Defendant pleaded "not guilty". Later defendant filednotice of his intention torely on the defenses of insanity, self-defense and alibi. Jury trial

### was held March 14 and 15, 1978, and appellantwas found guilty of the crime of aggravated assault. He

### was sentenced to four years inthe Montana State Prison. The sentence

### was suspended. On July 4, 1977, WilliamHeika, Earl Ballenger and 

### Jim Tompkins 

### were on a spur road a shortdistance off the Long Meadow Road inthe Yaak Valley of Lincoln County, Montana,

on their way tocut firewood atRoderick Butte nearby. Heika held a Forest Service permit tocut firewood in the

area. On the spur road they came upon a number of trees felled across the road blocking further progress. They proceeded tocut the trees intoblocks, loading them into Heika's pickup toclear passage for their three pickups. Appellant was driving down Long Meadow Road on his way home from work. He saw the three pickups on the spur road and recognized Heika's.Appellant testified he proceeded tohis ranch nearby and washed up. He then strapped on his .22 caliber pistol, tied a block of salton his trailbike and proceeded to take the salttohis cattle. He testified that he had felled the 

### trees across the spur road where Heika and his two companions



### were sawing inorder tocontain his cows within a Forest Service Grazing Permit located adjacent tohisranch and upon which the incident occurred. He testified that after saltinghis cattle, he decided toinvestigate to see if the 

### trees had been removed, which would allow his cows towalk away.Appellant testified he was somewhat upset when he arrived atthe scene of the incident. He apparently addressed himself toHeika almost exclusively although Heika 

### was the furthest from him ashe arrived on the scene. He testified he inquired

# ".

. . what the hell they 

### were doing there, cutting those trees." Heika's version 

### was appellant

# ".

. 

# . came charging outof the woods 

# . . 

# . [yelling atus] 'What inthe hell are you doing on my property'. That he had cut down those trees for a reason 

# . . 

# ." Appellant called Heika

some very profane and insulting names and ordered allof them off "hisproperty". Heika 

### was from 10 to 25 feet from appellant. Appellant was standing about atthe 

### rear of Heika's pickup. Both agree Heika took several steps forward inappellant's direction. Appellant atthispoint drew his automaticpistol and pointed it atHeika. Heika testified he had been ordered to leave and was trying toget tohis pickup todo so. Appellant's version is the steps 

### were threatening, asHeika had a beer can inhis hand and ~eika "had a weird look on his face", "a twisted look like he Wasreallymad and going toget revenge". Appellant testified he said, "Stop Billttand Bill stopped. Heika testified he stopped but that again appellant ordered him to leave and again he took a steptoward his pickup whereupon appellant pulled the slide tocock the automatic pistol and said "All right you fatson-of-a-bitch, another step and I 

### will blow you fullof holes like a s,i.eve." Heika turned away, walked to the farthestpickup, Tompkins', and left. Appellant holstered the pistol and allowed Tompkins to take Heika's pickup. Heika made a complaint to the sheriff and appellant

### was arrested. Some background is necessary. Appellant Kenneth Breitenstein owned the family ranch of 150 acres along the South Fork of the Yaak River and had lived there his whole life, 44 years. Heworked inthe woods felling trees and had some cattle on his ranch. He alsohad, ashis family before him, a U. S. Forest Service Grazing Permit on some 70 odd acres adjacent tothe ranch. The complaining witness, WilliamHeika, had lived in the Yaak community for two or two and one-half years before the incident. He "thinned inthe woods" and ran a bar called The Cherokee Strip, located about two or two and one-half 

### miles from the scene of the incident. Appellant and Heika had met four or five 

### times in the 

### timeHeika had lived inthe community. In 1976 Heika owned three Irish Setters and intended to raise setters atthe Cherokee Strip. InAugust 1976 appellant's son, Ken, Jr., shot two of Heika's dogs killing one and wounding another. One dog, "Big Melt', was registered and a champion, worth $350 according toHeika. ~ccordingto appellant, the dogs 

### were shot because they 

### were chasing appellant's cattle. In early 1977 Heika discovered who had shot his dogs and filed a lawsuit against appellant. Appellant also testified Heika had threatened him over the Citizen Band radio threatening toget appellant and his son if he could ever catch them "alone outon the road". The issue on appeal is framed by appellant as follows: Did the District Court err inexcluding evidence of specific instances of prior threats made by the victim of the alleged assault against appellant/defendant which 

### were known by appellant and which engendered inhim a reasonable belief thathe was indanger of imminent bodily injury? It is

### well tonote that the DistrictCourt did allow defendant to testify fully as to threats made by Heika againsthimself and his son. Two separateoffers of proof 

### weremade by appellant. The first

### was when appellant's son 

### was called as the firstdefense witness and before appellant had testified. The offer was that the witness, Ken, 

### Jr., would testify thatHeika's mother-in-law said she would blow Ken, Jr.'s head off with a shotgun and this threatwas related to appellant. Further, he would testify that inMarch 1977 there was a confrontation between Heika and Ken, Jr., atthe Dirty Shame Saloon when Heika said he was going toknock the helloutof Ken, Jr. This threatwas alsorelayed to appellant. The offer of proof was rejected by the court for lack of foundation. Appellant cites Rules 404-(a)(2) and 405(b)

### , Mont.R.Evid., as towhen specific instances of conduct may be used to show character where character is an essential element of the defense.Wehold that the trial court 

### was correct in its ruling atthis time. The Commission Comment toRules 404(a)(2) and 405(b) states ineffect that the Montana rules were modified from the Federal Rules specifically tobe restatements of existingMontana case 

### law. Appellant's argument recognizes the Montana rule is that "after the accused has laid his foundation for self-defense", such evidence maybe admissible." He argues that by appellantgiving notice of his intention to rely on self-defense that no further foundation 

### was necessary. This Court inStatev. Logan (1970), 156 Mont. 48, 64- 65, 473 P.2d 833, 842, specificallyrejected this argument: 

# ".

. . The existence of the issue of self-defense and an issue as to the agressor inthe altercation is necessary before corroboration by evidence of the deceased's reputation for turbulence and violence isadmissible.

"The notice of intention to rely on self-defense served by defendant on the stateprior to trial is immaterial and does not place thismatter in issue atthe trial. Defendant is not bound to rely on this defense atthe trialnotwithstanding serviceof this notice. Until such 

### time asdefendant took the stand and admitted the killing, the issueof self-defense 

### was not joined atthe trial. Thus no foundation existed for the admission of the testimony." (Emphasis added.) The Court then allowed appellant to testify to his knowledge of prior threats Heika had made. He testified that inthemiddle of April, he, appellant, 

### was talking to a neighbor on his Citizen Band radio when Heika broke inand said "I'll get even with you and your son" if he could ever catch them alone somewhere on the road. He also testified that inApril or May his daughter had told him thatHeika had stopped where she

### was living andmade her go for a ridewith Heika inhis pickup. Heika wanted appellant's daughter to testify against her father in the lawsuit over the dogs. Further, Heika had threatened to catch appellant outon the road and even things up. He further testified that in the spring of 1977 his son, Ken, Jr., 

### came home and told him he had had an encounter with Heika atthe Dirty Shame Saloon where Heika had threatened togethim for shooting the dogs. Under cross-examination Heika admitted the two incidents dealing with appellant's son and daughter. He denied the C. B. threat. However, allthe threats 

### were the same, he would get appellant and his son out on the road alone and

even things up. A second offer of proof was made toprove by the testimony of one David Lawson that the C.B. threat was made. The testimony of Elizabeth Breitenstein, now Elizabeth Jetton, would provide corroboration of Heika's visit toher and his threats toher father and brother. Further, Ken, Jr., would testify as tothreatsmade by Heika atthe Dirty Shame Saloon. This offerwas rejected by the court after stating he had allowed appellant to testify concerning the threats on his own stateof mind, but found "under the Rules of Evidence that itwould exclude it because itsprobative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue and resulting inmisleading the jury

# . " The court alsorefused the State through William Heika torebut the threats testified toby appellant. The trialjudge made his assessment of the probative value of the threat evidence and his reasoning as follows:

### "Thevery most that can be said is that with the beer can in his hand, if you take the Defendant's view of him moving toward his agressor, if you take the complaining witness's statement of standing there and I started to go to my car and a guy whipped out a pistol and then said I am going to blow you out of existence, or something to that effect, then itmight have been admitted solely for the state of mind of the Defendant. 

### I don't believe its of any great value to the Jury." Judge Brantly in State v. Hanlon (1909), 38 Mont. 557, 574, 580, 100 P. 

### 1035, addressed the admissibility of such evidence as follows: 

# ".



# . . But no hard-and-fast rule of exclusion may be laid down. A wise discretion should be the guide, and in all cases where the specific act, by reason of itsproximity in time and place, would legitimately reflect upon the conduct or motives of the parties at the time of the affray 

# . . . it should be admitted." Did the trial judge abuse his discretion? "As the admissibility of the evidence itself must rest largely in the sound discretion of the trial court, somust the extent to which the investigation of collateral issues arising thereon may so be lodged in its discretion, and its action will not be reviewed except where its discretionarypower has been manifestly abused." Hanlon, 38 Mont. at 580. The trial judge stated that in his opinion, further testimony as to the threats would be excluded because its "probativevalue is substantially outweighed by the danger of unfair prejudice, confusion of the issue and result in misleading the jury.

### " Rule 403,Mont.R.Evid., states: "Although relevant, evidencemay be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury 

# . . 

# . or needless presentation of cumulative evidence." The Commission Comment reads: "A key element of this rule is the discretion of the judge in deciding whether otherwise relevant evidence is to be excluded because of the factors listed in the rule."In Statev. Jennings (1934), 96 Mont. 80, 89, 28 P.2d 448, this Court stated: "Such evidence is admissible only when the defendant has interposed a plea of self-defense (citing cases) and when a proper foundation is laid by proof of some overt actjustifying such defense. (Citingcases.) The trial court should exercise a sound legal discretion in determining whether or not the proper foundation has been laid for the introduction of the offered testimony. 

# . 

# .

"'The true solution is toexercise a discretion and to admit such facts when common sense tells that they could legitimately affect a defendant's apprehension.' (1Wigmore on Evidence, 2nd ed., 521.)" In this case thejury was informed of the threats. From the total record of the case, the long-standing controversy between Heika and appellant and his family is clear and uncontradicted. The evidence by the witnesses to the incident substantiates that even during the confrontation, the dog problem was argued. Under these ciroumstances 

### we hold that the trialjudge did not abuse his discretion by ruling that repetitious testimony as to prior threats should be excluded as likely to distract and mislead the jury from the issues actually incontroversy. See Statev. Heaston (1939), 109Mont. 303,

The judgment of conviction is affirmed.

-. - Chief Justice